Thoughts on recent Ninth Circuit and California appellate cases from Professor Shaun Martin at the University of San Diego School of Law.

Friday, December 09, 2011

San Francisco Opera Ass'n v. Flickinger (Cal Ct. App. - Dec. 9, 2011)

Two individuals die and leave the entirety of their assets to the San Francisco Opera. Around a half million total. The deaths are in 1996, a lawyer gets appointed for the estates (and paid), and by late 1998/early 1999, everything's finished, and the Opera's supposed to get the money.

But the lawyer never writes a check. The Opera never follows up. The money just sits there. Waiting. Waiting. Waiting. Nothing happens.

Six years later, the Opera looks into old bequests, and follows up. The attorney says: "Oh, I'm sure it's been paid out and just not recorded." A year passes, and the Opera eventually says: "Are you sure?"

Yet another year passes. No money. So the Opera hires a lawyer. Another year passes. And finally, in 2009, the lawyer sends a check for most of the money. At which point the Opera files suit. Saying that a partial payment in 2009 of money it should have gotten a decade earlier is hardly sufficient. Wanting the full amount plus interest.

The trial court's willing to make the lawyer give 'em the full amount. Not surprisingly. But the lawyer can't find some of the money, which had probably escheated to California because the accounts were inactive for so long. But that's the lawyer's problem, not the Opera's. But as for interest -- a pretty penny at this point -- the trial court's not persuaded by the Opera's argument. Sure, the lawyer messed up. He was inattentive. He was lazy. But so were you. You didn't effectively follow up on money you knew was due either. We call that laches. No interest.